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Libertarian Motivations on the Vinson Court
Published online by Cambridge University Press: 02 September 2013
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Justice Frankfurter is fond of quoting an old English saying that “the devil himself knoweth not the mind of men.” The mind of a man who happens to be a judge is the center of many contending impulses when he is making it up, and an external reconstruction of the process is quite impossible. However, the rules of the game require that judges supply clues to their thought processes in the form of written opinions. In every major case decided by the Supreme Court, one or more of its members provide a written justification for the decision announced. The individualistic tradition of Anglo-Saxon jurisprudence, moreover, permits justices who do not agree with the views of their brethren to say so, and to give their reasons for dissenting. Thus the Supreme Court on decision day takes on the aspect of a small legislature in which votes are cast pro and con on significant issues of public policy, with accompanying explanations much more coherent and systematic and better-reasoned than are customarily available in explanation of votes cast, say, in the United States Senate.
While it has not been usual to do so, these judicial votes can be subjected to the same kinds of analysis as have been traditionally employed for the study of legislative voting behavior.
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- Copyright © American Political Science Association 1953
References
1 See Leland v. Oregon, 343 U. S. 790 (1952).
2 This covers the period since Vinson became Chief Justice. The deaths of Justices Murphy and Rutledge in the summer of 1949, and their replacement by Justices Clark and Minton, account for the only changes of personnel during the period.
3 Chancellor Kent once explained how he arrived at decisions. He first made himself “master of the facts.” Then, he continued: “I saw where justice lay, and the moral sense decided the court half the time; I then sat down to search the authorities…. I might once in a while be embarrassed by a technical rule, but I almost always found principles suited to my view of the case ….” Quoted in Frank, Jerome, Law and the Modern Mind (New York, 1930), p. 104Google Scholar.
4 “Justice in a Democracy,” The Atlantic Monthly, Vol. 184, pp. 34–36 (12, 1949)Google Scholar.
5 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 (1941).
6 198 U. S. 45 (1905). And in Meyer v. Nebraska Holmes refused to hold invalid a state law against the teaching of German language in the primary schools, because he believed that whether children in their early years should hear and speak only English at school was “a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment from being tried.” 262 U. S. 390 (1923).
7 Schenck v. United States, 249 U. S. 47 (1919).
8 274 U. S. 357 (1927).
9 See Frankfurter's, comment in Mr. Justice Holmes and the Supreme Court (Cambridge, Mass., 1938), pp. 59–62Google Scholar.
10 304 U. S. 144, 152 (1938).
11 Schneider v. New Jersey, 308 U. S. 147 (1939).
12 West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943). However, when Frankfurter reviewed the history of the concept in his concurrence to Kovacs v. Cooper, 336 U. S. 77 (1949), he contended that the preferred position argument as he understood it had been held only by the four libertarians, and had “never commended itself to a majority of this Court.”
13 Thornhill v. Alabama, 310 U. S. 88 (1940); Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. Harney, 331 U. S. 367 (1947).
14 Falbo v. United States, 320 U. S. 549 (1944).
15 Saia v. New York, 334 U. S. 558 (1948).
16 Terminiello v. Chicago, 337 U. S. 1 (1949).
17 A useful word apparently invented by Christopher Morley, who defines it as “the helper of the underdog.” See Preface to The Complete Sherlock Holmes (New York, 1953), p. XVGoogle Scholar.
18 Differences of approach are illustrated by the deportation cases at issue in Carlson v. Landon, 342 U. S. 524 (1952). Reed's majority opinion veiled the impact of the proposed deportations by impersonal references to petitioners' “many years residence spent in this country” and “their integration into community life through marriage and family connections.” From Black's dissent, on the other hand, we get such particulars as that Mrs. Stevenson's husband is doing the housework while she is “detained in jail as dangerous to our national security,” and that her son “has long been subject to attacks of undulant fever”; that Mr. Zydok has two U. S.-born sons who served in World War II, sold $50,000 worth of war bonds during the war while serving as a waiter, and donated blood on seven occasions to the Red Cross.
19 This view was well stated by Justice Gibson in Eakin v. Raub (1825), where he argued that justices are in the situation of jurors in capital cases, who “do not deprive a prisoner of life by finding him guilty of a capital crime; [they] but pronounce his case to be within the law, and it is therefore those who declare the law … who deprive him of life.” Quoted from R. E. Cushman, Leading Constitutional Decisions (8th ed., New York, 1946), p. 218.
20 Urie v. Thompson, 337 U. S. 163 (1949).
21 338 U. S. 680 (1950). Frankfurter and Jackson also dissented.
22 334 U. S. 699 (1948).
23 329 U. S. 173 (1946). Italics added.
24 Minersville School District v. Gobitis, 310 U. S. 586 (1940); West Virginia State Board of Education v. Barnette, supra.
25 Saia v. New York, supra; Kovacs v. Cooper, supra.
26 341 U. S. 494 (1951).
27 340 U. S. 315 (1951).
28 339 U. S. 470 (1950).
29 As for the “preferred position” doctrine, in Kovacs v. Cooper he refers to it as “a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity …. I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it.”
30 United States v. Butler, 297 U. S. 1 (1936).
31 297 U. S. 288 (1936). Roberts also joined this trio.
32 In Dennis v. United States, supra, he wrote: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits.”
33 Duncan v. Kahanamoku, 327 U. S. 304 (1946).
34 335 U. S. 160 (1948).
35 328 U. S. 303 (1946).
36 335 U. S. 106 (1948).
37 Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). Frankfurter said: “The judiciary may, as this case proves, have to intervene in determining where authority lies as between the democratic forces in our scheme of government. But in doing so we should be wary and humble. Such is the teaching of this Court's rôle in the history of the country.” As to the change in formula, he wrote: “We must … put to one side consideration of what powers the President would have had … if the seizure had been only for a short, explicitly temporary period, to be determined automatically unless Congressional approval were given.”
38 Beauharnais v. People, 343 U. S. 250 (1952).
39 328 U. S. 549 (1946).
40 335 U. S. 437 (1948).
41 325 U. S. 91 (1945). In United States v. Williams, 341 U. S. 70 (1951), Frankfurter carried the majority with him in adopting a restrictive interpretation for a companion federal civil rights statute.
42 Another method, of course, is to review Frankfurter's record on civil liberties before he became a member of the Supreme Court.
43 In 34 of the 194 nonunanimous decisions during the 1949–51 terms, Black and Frankfurter dissented together. Of these 34 cases, 22 raised civil liberties issues.
44 “The Supreme Court, 1951 Term: Foreword—The Year of the Steel Case,” Harvard Law Review, Vol. 66, p. 97 (1952)Google Scholar.
45 West Virginia State Board of Education v. Barnette, supra.
46 332 U. S. 596 (1948).
47 329 U. S. 459 (1947).
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